ArtI.S2.C3.1.1 The Census Requirement

Article I, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. 1 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

The Census Clause reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the states, would determine the manner of conducting the census.2 These determinations all suggest a strong constitutional interest in accuracy.3

The language employed – actual enumeration – requires an actual count, but gives Congress wide discretion in determining the methodology of that count. The word enumeration refers to a counting process without describing the count’s methodological details. The word actual merely refers to the enumeration to be used for apportioning the Third Congress, and thereby distinguishes a deliberately taken count from the conjectural approach that had been used for the First Congress. Finally, the conferral of authority on Congress to direct the manner of enumeration underscores the breadth of congressional methodological authority. Thus, the Court held in Utah v. Evans, hot deck imputation, a method used to fill in missing data by imputing to an address the number of persons found at a nearby address or unit of the same type, does not run afoul of the actual enumeration requirement. 4 The Court distinguished imputation from statistical sampling, and indicated that its holding was relatively narrow. Imputation was permissible where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely.5

Although the Census Clause expressly provides for an enumeration of persons, Congress has historically collected additional demographic information—in some years asking more detailed questions regarding the personal and economic affairs of a subset of respondents. 6

The Court confirmed this understanding of the Enumeration Clause in Department of Commerce v. New York. 7 In an opinion on behalf of the Court, Chief Justice Roberts considered whether the Secretary of Commerce’s decision to ask a citizenship question on the census questionnaire violated the Enumeration Clause because the question did not relate to the accomplishment of an actual enumeration. 8 The Chief Justice began his analysis by recognizing that the Clause affords virtually limitless authority to Congress in conducting the census, which Congress has, in turn, largely delegated to the Secretary. 9 The Court observed that demographic questions have been asked in every census since 1790, providing a “long and consistent historical practice” that informed the permissibility of the underlying practice. 10 Because of this understanding of the Clause’s meaning, the Court held that Congress, and by extension the Secretary, has the power to use the census for broader information-gathering purposes without running afoul of the Enumeration Clause. 11

Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to reapportion representatives among the states after the census is taken. 12 It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929, 13 it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called method of major fractions, which had been earlier employed in the apportionment of 1911, and which has now been replaced with the method of equal proportions. Following the 1990 census, a state that had lost a House seat as a result of the use of this formula sued, alleging a violation of the one person, one vote rule derived from Article I, § 2. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment. 14 The goal of absolute population equality among districts is realistic and appropriate within a single state, but the constitutional guarantee of one Representative for each state constrains application to districts in different states, and makes the goal illusory for the Nation as a whole.15

Although requiring the election of Representatives by districts, Congress has left it to the states to draw district boundaries. This has occasioned a number of disputes. In Ohio ex rel. Davis v. Hildebrant, 16 a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several states produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution. 17

Footnotes

  1.  The part of this clause relating to the mode of apportionment of representatives among the several States was changed by the Fourteenth Amendment, Section 2 and as to taxes on incomes without apportionment, by the Sixteenth Amendment.
  2.  Utah v. Evans, 536 U.S. 452, 476 (2002).
  3.  Id.
  4.  Utah v. Evans, 536 U.S. 452 (2002).
  5.  See also Wisconsin v. City of New York, 517 U.S. 1 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute; and Franklin v. Massachusetts, 505 U.S. 788 (1992), upholding the practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the states of last residence. The mandate of an enumeration of their respective numbers was complied with, it having been the practice since the first enumeration to allocate persons to the place of their usual residence, and to construe both this term and the word inhabitant broadly to include people temporarily absent.
  6.  See Dep’t of Commerce v. New York, 588 U.S. ___, No. 18-966, slip op. at 2 (2019).
  7.  See Dep’t of Commerce, slip op.
  8.  Id. at 11. In so doing, the Court distinguished the instant challenge against the Secretary of Commerce’s decision to collect certain demographic information during the census from prior case law involving the Secretary’s decisions on how to conduct the population count for the ceConsus. Id. That case law required decisions about the population count to be reasonably related to accomplishing an actual enumeration. Id.
  9.  Id.
  10.  Id. at 12–13 (“That history matters. . . . In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.”).
  11.  Id. at 13. In a separate part of the opinion, the Court invalidated the inclusion of the question on procedural grounds, concluding that the Secretary violated the Administrative Procedure Act by failing to disclose the actual reason for adding the citizenship question on the census questionnaire. Id. at 28.
  12.  For an extensive history of the subject, see L. Schmeckebier, Congressional Apportionment (1941).
  13.  46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a.
  14.  U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992).
  15.  503 U.S. at 463 ([T]he need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50).
  16.  241 U.S. 565 (1916).
  17.  Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).